Frazier v. Myers et al (DEATH PENALTY)(JOINT ASSIGN)(MEMBER)
ORDER as follows: 1. This proceeding is STAYED generally. 2. Within fourteen (14) days from the Supreme Courts decision in Glossip, the parties shall jointly, if possible, or individually, if not, file a statement or appropriate motion that informs t he court of their respective positions on the issues in this case in view of the Glossip decision as further set out in the order. 3. The States Motion to Dismiss (Doc. 21 ) is DENIED with LEAVE to REFILE following the Supreme Courts decision in Glossip. Signed by Chief Judge William Keith Watkins on 3/19/2015. (dmn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
WALTER MYERS, et al.,
CASE NO. 2:13-CV-781-WKW
(WO – Do Not Publish)
This court has seven 42 U.S.C. § 1983 lethal injection lawsuits currently
pending before it, all at various stages of litigation: the instant case (filed October
21, 2013); Arthur v. Myers, et al., 2:11-cv-438-WKW (filed June 8, 2011); Grayson
v. Sharp, et al., 2:12-cv-316-WKW (filed April 6, 2012); Boyd v. Myers, et al., 2:14cv-1017-WKW (filed October 2, 2014); Roberts v. Myers, et al., 2:14-cv-1028WKW (filed October 3, 2014); Myers v. Myers, et al., 2:14-cv-1029-WKW (filed
October 3, 2014); and Hunt v. Myers, et al., 2:14-cv-1030-WKW (filed October 3,
2014). All of these cases present similar claims of the plaintiffs and defenses of the
State. This case, along with Boyd and Roberts, have motions to set execution dates
pending before the Alabama Supreme Court. No motion to set an execution date
was filed in Grayson, and execution dates were recently set by the Alabama Supreme
Court in Hunt (April 16, 2015) and Myers (June 18, 2015). The February 19, 2015
execution date in Arthur was recently stayed pending a trial on May 5−6, 2015, and
a final decision by the court.
On March 17, 2015, the court held a joint telephone status conference in this
case, Roberts, and Boyd. Counsel for those plaintiffs and the State participated.1
Based upon the representations made by both the plaintiffs and the State at this
conference, the court reconsidered, sua sponte, a motion made by the State in Arthur
to extend discovery deadlines and to amend the court’s scheduling order. See Arthur
v. Myers, et al., 2:11-cv-438-WKW (Doc. # 232.) The court had previously granted
the State’s motion in part, extending the deadlines for expert reports and discovery,
but had denied the motion to the extent the State sought a continuance of the May
5−6, 2015 final hearing. See Arthur v. Myers, et al., 2:11-cv-438-WKW (Doc. #
However, following the March 17, 2015 joint status conference, the court
reconsidered one of the grounds given by the State for a continuance of the May
5−6, 2015 final hearing in Arthur, namely, that the United States Supreme Court’s
upcoming decision in Glossip v. Gross will affect many of the questions facing the
court in Arthur. Glossip will address, among other things, Florida’s lethal injection
protocol, which is substantially similar to Alabama’s, and will likely bear directly
Although Grayson, Hunt, and Myers were not technically part of the March 17, 2015
telephone conference, counsel for those plaintiffs participated in the conference, albeit indirectly,
since Grayson, Hunt, and Myers are represented by the same counsel as Frazier and Roberts.
on the pleading and proof standards in Eighth Amendment lethal injection claims,
as well as the scope and type of discovery that is relevant and appropriate in those
cases. As a result, the court found that it was in the interests of justice to continue
motion and discovery deadlines and the final hearing in Arthur until the Supreme
Court decides Glossip (with a decision expected by the end of June).
This case involves many of the same issues and defenses as those presented
in Arthur and, therefore, will also be affected by the Supreme Court’s decision in
Glossip. Moreover, based on a joint status report filed by Frazier and the State on
March 18, 2015, a delay of a few months in the progress of this litigation will not
prejudice Frazier. (See Doc. # 29.) Indeed, the State recently moved the Alabama
Supreme Court to hold its pending motion to set Frazier’s execution in abeyance
until after the Supreme Court decides Glossip.2 The State has also represented that,
if the Alabama Supreme Court sets Frazier’s execution date, despite its abeyance
motion, it will not oppose a motion to stay his execution, whether in the Alabama
Supreme Court or this court, until after Glossip is decided. Thus, in light of the
foregoing, the court finds it appropriate and in the interests of justice to stay these
proceedings until after a decision is issued in Glossip.
Accordingly, it is ORDERED as follows:
This proceeding is STAYED generally.
This motion had not been ruled on by the Alabama Supreme Court.
Within fourteen (14) days from the Supreme Court’s decision in
Glossip, the parties shall jointly, if possible, or individually, if not, file a statement
or appropriate motion that informs the court of their respective positions on the
issues in this case in view of the Glossip decision.
The State’s Motion to Dismiss (Doc. # 21) is DENIED with LEAVE to
REFILE following the Supreme Court’s decision in Glossip.
DONE this 19th day of March, 2015.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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